Standing Committee D

[Mr. George Stevenson in the Chair]

Homes Bill

Clause 1 - Meaning of ``residential property'' and other expressions

Amendment proposed [this day]: No. 51, in page 1, line 17, at end insert— 
`( ) ``Energy efficiency'' means the extent to which the sources of heating and lighting in domestic premises are used without unnecessary waste, as measured by an approved assessment procedure.'.
 Question again proposed, That the amendment be made.

George Stevenson: I remind the Committee that with this we are taking the following: amendment No. 27, in clause 7, page 5, line 44, at end insert—
`(ca) the energy efficiency of the building, identifying the presence of existing measures for improving energy efficiency and those which may reasonably be expected to be added;'.
 Amendment No. 23, in clause 7, page 6, line 2, at end insert— 
`(da) the energy efficiency of the property, including 
 (i) the presence or absence in the dwelling of specified measures for improving energy efficiency, and 
 (ii) measures which could be taken for the purpose of improving energy efficiency.'.
 Amendment No. 28, in clause 7, page 6, line 8, at end insert— 
`(aa) a report on the energy efficiency of the property, identifying energy efficient aspects of the structure, ranked with comparable properties, and including advice on improvement measures which it is feasible to make;'.
 Amendment No. 24, in clause 7, page 6, line 10, at end insert— 
`(ba) an energy efficiency report containing advice on measures to improve the energy efficiency of the property, and an indication of the cost and pay-back period of each of these measures.'.
 Amendment No. 25, in clause 8, page 6, line 26, after `section 7(5)(d)', add `and (da)'. 
 New clause 4—Energy efficiency report: transitional provision— 
`.The Secretary of State may by regulations bring Schedule (Energy Efficiency reports) into effect for a period of time set by those regulations if in his judgement this would assist or provide information relevant to the marketing of residential properties in England or Wales.'.
 New schedule 1—Energy Efficiency Reports— 
`1.—(1) Subject to the provisions of this Schedule, it shall be the duty of any person in whose favour a mortgage of any legal estate in a dwelling is granted (in this Schedule referred to as ``the lender'') to ensure that, if any qualifying survey of the dwelling has been undertaken by him or on his behalf in connection with that mortgage—
(a) a report on the energy efficiency of the dwelling (in this Schedule referred to as ``an energy efficiency report'') has been prepared by or on behalf of the lender in accordance with regulations under paragraph 5 on the basis of the physical inspection undertaken for the purpose of the qualifying survey, and 
 (b) the person granting the mortgage (in this Schedule referred to as ``the borrower'') has been provided, before the grant of the mortgage, with a copy of the energy efficiency report. 
 (2) No duty arises under sub-paragraph (1) unless— 
 (a) the mortgage relates only 
 (i) to a single dwelling, or 
 (ii) to a single dwelling together with premises occupied or intended to be occupied for business purposes, 
 (b) the loan to which the mortgage relates was made in pursuance of an application made to the lender by the borrower, and 
 (c) the dwelling is occupied by, or is intended for occupation by, the borrower as his residence. 
 (3) The lender may, in fixing the amount of any fee to be charged for a qualifying survey, taken into account any additional costs reasonably incurred in preparing the energy efficiency report, but the duty in sub-paragraph (1) arises whether or not the borrower has paid, or agreed to pay, any such additional costs. 
 (4) In sub-paragraph (1) a ``qualifying survey'', in relation to a dwelling, means any survey or valuation which includes a physical inspection of both the exterior and the interior of the dwelling. 
 2. The duty in paragraph 1 does not arise in relation to any dwelling which was provided (by construction or conversion) less than three years before the date on which the borrower applied for the loan to which the mortgage relates. 
 3. The duty in paragraph 1 does not arise where, before the grant of the mortgage, the borrower has obtained, or been given a copy of, a report which— 
 (a) relates to the dwelling, 
 (b) complies with regulations under paragraph 5, and 
 (c) was prepared less than twelve months before the date on which the borrower applied for the loan to which the mortgage relates. 
 4.—(1) The duty in paragraph 1 does not arise where— 
 (a) the lender is a member of the borrower's family and is not lending in the course of a business carried on by the lender, or 
 (b) the lenders are the trustees of a trust created by an individual for the benefit of members of his family and their descendants. 
 (2) For the purposes of sub-paragraph (1) a person is a member of another's family if— 
 (a) he is the spouse of that person, or he and that person live together as husband and wife, or 
 (b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. 
 (3) For the purposes of sub-paragraph (2)(b)— 
 (a) a relationship by marriage shall be treated as a relationship by blood, 
 (b) a relationship of the half-blood shall be treated as a relationship of the whole blood, and 
 (c) the stepchild of a person shall be treated as his child. 
 5.—(1) The Secretary of State shall make regulations specifying the requirements which must be met by the lender in relation to the preparation of an energy efficiency report. 
 (2) The regulations may, in particular, require a report to include— 
 (a) information as to the presence or absence in the dwelling of specified measures for improving energy efficiency, and 
 (b) a statement recommending measures which could be taken for the purpose of improving energy efficiency. 
 (3) Regulations under this paragraph may make different provision for different cases and different areas. 
 (4) Regulations under this paragraph may not require an energy efficiency report to contain any information in respect of the dwelling which is not readily ascertainable on a visual inspection of so much of the exterior and interior of the dwelling as is accessible without undue difficulty to the person undertaking the inspection. 
 (5) Regulations under this paragraph may not require an energy efficiency report in respect of a flat to contain information about the common parts of the building in which the flat is situated. 
 (6) Before making regulations under this paragraph, the Secretary of State shall consult— 
 (a) such mortgage lenders or persons appearing to him to represent mortgage lenders as he considers appropriate, and 
 (b) such other persons as he considers appropriate. 
 (7) In making regulations under this paragraph, the Secretary of State shall have regard to the cost of preparing an energy efficiency report. 
 (8) Regulations under this paragraph shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. 
 (9) In this paragraph— 
 ``common parts'', in relation to a building, includes the structure and exterior of the building and common facilities provided, whether in the building or elsewhere, for persons who include the occupiers of one or more flats in the building; 
 ``flat'' means a dwelling which is a separate set of premises, whether or not on the same floor, divided horizontally from some other part of the building; 
 ``mortgage lender'' means a person who, in the course of a business, lends money secured by mortgages of dwellings. 
 6.—(1) If the borrower suffers loss by reason of the failure of the lender to comply with his duty under paragraph 1, the borrower is entitled to compensation for that loss from the lender. 
 (2) In determining for the purposes of this paragraph whether the borrower has suffered loss as mentioned in sub-paragraph (1) and, if so, the amount of that loss, a court— 
 (a) shall assume that the borrower would have taken every measure that would have been recommended in a report complying with paragraph 5, 
 (b) shall have regard to the cost that would be likely to have been incurred in taking those measures if they had been taken immediately after the grant of the mortgage, 
 (c) shall determine the likely expected life of each measure and apportion that cost rateably over that life, and 
 (d) shall calculate the savings that would have been made during the relevant period if the measures had been taken. 
 (3) In sub-paragraph (2) ``the relevant period'' means the period beginning with the day on which the mortgage was granted and ending immediately before the sixth anniversary of that day or, if earlier— 
 (a) in relation to any measure falling within sub-paragraph (2)(a) which has in fact been taken by the borrower, with the day on which the taking of the measure is completed, 
 (b) in a case where the lender provides the borrower with, or with a copy of, an energy efficiency report complying with paragraph 5 prepared not less than 12 months before the day on which it is provided, that day, 
 (c) the day on which the borrower ceases to own any interest in the dwelling, 
 (d) the death of the borrower, or 
 (e) the day on which any proceedings under this paragraph are first determined by a court or by the award of an arbitrator. 
 7. In this Schedule— 
 ``the borrower'' and ``the lender'' shall be construed in accordance with paragraph 1; 
 ``dwelling'' means a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses or appurtenances belonging to it or usually enjoyed with it, but does not include a mobile home; 
 ``energy efficiency report'' shall be construed in accordance with paragraph 1; 
 ``mobile home'' means a caravan within the meaning of Part I of the Caravan Sites and Control of Development Act 1960 (disregarding the amendment made by section 13(2) of the Caravan Sites Act 1968); 
 ``mortgage'' means any mortgage or other charge on property for securing money or money's worth which is made by deed. 
 8.—(1) Paragraph 5 and this paragraph shall come into force on the day on which regulations made under section 7( ) take effect. 
 (2) The remaining provisions of this Schedule shall come into force on such day or days as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different purposes or different areas. 
 (3) The power to make an order under sub-paragraph (2) includes power to make such transitional provisions and savings as the Secretary of State considers appropriate. 
 (4) The Secretary of State shall consult the National Assembly for Wales before making any regulations under this schedule which relate to Wales. 
 (5) This schedule extends to England and Wales only.'.

Nick Raynsford: Welcome to the Committee, Mr. Stevenson. I look forward to our proceedings continuing under your chairmanship and that of Mr. Gale.
 I explained before lunch why the proposal in the clause for an energy efficiency report to form part of the home condition report applying to all sales is preferable to new clause 4 and new schedule 1, whereby such reports would be limited to properties that are the subject of a mortgage valuation. I accept the argument advanced by the hon. Member for Bath (Mr. Foster) that new clause 4 and new schedule 1 could provide an interim arrangement. He agreed that our proposal is more satisfactory in the long term, but said that he wanted some progress made in the interim. That is a valid point of view, but I hope that my explanation will convince him that the option that he proposes is not feasible. 
 It would be costly and complicated to introduce the measures in the schedule for a short period only and it might cause difficulties for the surveying profession. Many valuers working for lenders do not have the training or expertise to conduct energy efficiency surveys, so there would inevitably be a training need. It is likely, given the concerns that have rightly been voiced about the importance of people being able to rely on the competence of those carrying out the surveys, that a form of accreditation similar to the arrangements that we propose for home condition reports would be needed. It would be a nightmare to try to train a large number of surveyors and introduce and operate a separate accreditation system in parallel with the arrangements for training all the surveyors who will become inspectors for the purpose of the home condition report. There is real scope for problems to arise, for duplication and for cost overruns, which would be a wholly unwelcome distraction at a time when the focus should be on training the inspectors who will be fundamental to the operation of the main house condition report which, as the hon. Gentleman acknowledges, will provide a better, more fundamental and more lasting solution. 
 Introducing the interim arrangements for the sake of a year—or perhaps 18 months if the hon. Gentleman's pessimistic view is right and it takes as long as that to introduce home condition reports and seller's packs—cannot be justified financially or in terms of the upheaval, potential chaos and confusion. I therefore urge the hon. Gentleman to withdraw the amendment.

Tim Loughton: I should like to the Minister to clarify his remarks, which are contrary to those which he offered on Second Reading. He said that to satisfy the conditions of the home seller's packs would require a raft of new surveyors whose training would cost money, which cost would fall on the home seller's pack business. Yet he claimed the other day that there would be no extra costs. Is he suggesting that those surveyors will do the job for free out of good will, or does he admit that a large cost will be involved?

Nick Raynsford: The hon. Gentleman is confusing different issues, the first of which is the adequacy of the number of surveyors. There was a question on Second Reading about whether there would be enough surveyors. There are about 9,000 surveyors with general qualifications and it is estimated that approximately that number will be required to carry out the inspections.

Nigel Waterson: I hesitate to interrupt the Minister when he has just got back into gear, but does he not accept the Royal Institution of Chartered Surveyors' estimate of another 2,000 to 3,000 surveyors being needed? If the top end of that estimate is anything like accurate, the number of surveyors will have to increase by one third.

Nick Raynsford: Other professionals could well become inspectors—indeed, the members of a number of other professions are interested in becoming qualified inspectors; there will certainly be more than the 9,000 who are currently available. My point is that is no shortage.
 The second issue is training. Of course there will be a training need if inspectors are to perform the functions according to the regulations that we will publish—that is essential to provide a scheme that commands public confidence. However, the estimate of additional costs given by the hon. Member for East Worthing and Shoreham (Mr. Loughton) is somewhat wide of the mark. The RICS estimates that the approximate cost per inspection carried out for the introduction of the accreditation arrangement will be 50p. I accept that that is additional expenditure, but it is not of the order of magnitude that the hon. Gentleman suggests. To suggest that huge additional costs will result from the introduction of the accreditation system is wide of the mark. 
 However, there will obviously be a need for training, both initial and on-going, as professionals need to keep in touch with changes in software, for example. The hon. Gentleman acknowledged that there have been changes in the technology since the introduction of home energy ratings in the late 1980s. I was a member of the National Energy Foundation, which was responsible for one of the ratings, and I am well aware that there has been progress in technology since that time. Obviously there will be a need for continuing training, but that is a normal part of the process of providing a professional service. 
 The hon. Gentleman mentioned the Government's record on reducing emissions. He made a gratuitous and unwarranted attack on my right hon. Friend the Deputy Prime Minister, who has done substantial service on that issue—for example, by agreeing the Kyoto agreement, which gave a real boost to the reduction of emissions and showed that Britain was in the lead in terms of reaching international agreements to reduce unwanted emissions. In addition, this country has made enormous progress internally. We expect to achieve a 15 per cent. reduction in UK emissions between 1990 and 2000, which puts us well on track to achieve our domestic goal of a 20 per cent. reduction by 2010. 
 Further measures are being introduced from April with the climate change levy and the new home energy efficiency scheme. That scheme is particularly important to low-income households, which are especially vulnerable to the problems of high energy costs resulting from inefficiently insulated housing and inefficient heating systems. The Committee will be aware of all the measures that we have taken to tackle the scandal in this country of far too many old people suffering and dying from the cold in winter, because of a combination of low incomes and houses that are difficult or expensive to keep warm. 
 The winter heating supplement, which the Conservatives are pledged to abolish, shows the Government's commitment to tackle the scandal. We will take no lessons from the Conservatives on energy efficiency measures. We have the right policies to help people, to improve the condition of the housing stock and to establish a proper system for giving information at the point of sale of a property, so that new home owners know what can be done to improve their home's energy efficiency, the costs and the payback period. That is all part of a key strategy to tackle the problem of energy inefficiency, and I warmly commend the Government's position. I urge Opposition Members to withdraw their amendment. If they do not, I urge my hon. Friends to vote against it.

Andrew Love: On a point of order, Mr. Stevenson. I seek your guidance. This morning, Mr. Gale allowed Committee Members to remove their jackets. Unlike Conservatives, we seek your guidance before removing ours.

George Stevenson: In the interests of accuracy, I point out that Conservative Members did seek my guidance privately. They have my permission and so have other hon. Members.

Don Foster: I welcome you to the Chair, Mr. Stevenson. You may already be in some confusion about what is going on in Committee, with talk of secret deals. Conservative Members alleged earlier that the Liberal Democrats had done a secret deal with Labour Members on the timetable motion. It is now being alleged that there is a secret deal on the removal of jackets. No such deal was made, Mr. Stevenson, so I apologise for failing to seek your permission to remove my jacket, notwithstanding the fact that you had already given it to Conservative Members.
 In responding to some of my amendments in our earlier deliberations, the Minister said that he would use argument A in his defence as to why he would not persuade his hon. Friends to support them. He was good enough to explain that argument A is the now infamous list argument: it is bad to have a list of items in the Bill, because some people would argue that anything not in that list would not be considered a significant issue. When the Minister raised that argument, I am afraid that I rose to my feet rather rapidly and said that I intended to use argument B to refute it. Perhaps I will have the opportunity to unveil argument B later. However, I want to apologise to the Committee, because I was a little hasty in my earlier reflections and now wish, perhaps strangely, to use argument A to persuade the Minister that he has misused argument A rather badly. I hope that, on reflection, he will see that argument A is, in fact, a good reason why he should accept our amendment. 
 The Committee will be aware that the Minister said—I repeat what I said a minute ago—that argument A was simple and that, if a list was provided, an item not on that list would be deemed insignificant and not something that the Government had thought it important to include. I draw the attention of the Minister and all Committee Members to clause 7(5), which we seek to amend. Rather surprisingly, it already contains a list of a number of items that the seller's pack must contain, including details of the interest for sale, title, the items kept on a register or records kept by certain classes of people, warranties, guarantees and details of taxes or service charges. There is already a list of seven items. According to the Minister's own argument A, if we do not include energy efficiency among the items on the list, it will be deemed insignificant. I hope that he will accept that a large number of people may deem some of the items on the list to be less significant than energy efficiency.

Nick Raynsford: I hope that the hon. Gentleman will accept that, while he may regard some of the items on the list as being less significant, they are of a different nature to issues relating to the physical condition of the property. The physical condition of the property is covered by clause 7(5)(d) and we are satisfied that it covers energy efficiency. The hon. Gentleman will also accept that, if we were to identify energy efficiency as one characteristic of the physical condition of the property, it would be difficult to resist arguments that we should also include other physical conditions such as noise, insulation, adaptability for disabled people and so on. That was the nub of the argument.

Don Foster: We could trade lists of things of differing significance, but my point is that it has been accepted by the Committee, and, more importantly, more widely in the House, that energy efficiency and energy efficiency surveys are important and significant. Notwithstanding the importance of some of the other measures that the Minister has referred to, some of which are in the Bill and some of which are not, many members of the Committee consider that energy efficiency and energy efficiency surveys are so significant as to warrant inclusion in the Bill.
 It is clear from his earlier remarks and from that intervention that I have not yet persuaded the Minister of the importance of putting this issue in the Bill. I will come to the seller's pack in a second, but it may be sensible for me to agree not to press my amendment so that the Minister has time to reflect on whether he might wish to change his mind and accept it, and to allow him the time to reflect on whether he can have his cake and eat it by making modest changes to clause 7(5)(d). He may find a form of words—perhaps I might give him suggestions later on—to tie in energy efficiency within the wording of a home condition report, which might solve everybody's problem. 
 Although, I think that that is important, and an issue to which I hope to return at a later stage, I will not press the amendment. However, I assure the Minister that, if we cannot find a way forward by agreement, I will seek to bring the matter back on Report. 
 My second proposal is to have an interim set of procedures between the time when the seller's pack is introduced and now. I said when I began that I was aware of the response that the Minister would make. Long before he gave that response, I had outlined what his response would be: that there would be a relatively short time between the two and that my proposal would not be as effective as his own. In addition, some training costs would be involved and some people would argue that it was not worth it. I hope that the Minister will acknowledge that, long before he made those comments, I had made them for him. On the point that I sought to make earlier—not with enough force—those arguments were invalid because of the large number of people who would benefit, at relatively small cost, from the introduction of the interim measures. 
 The Minister pointed out that not all home transactions happened through mortgages. The 1.5 million homes to which I referred had been transferred with mortgages, which would be affected. I understand that those are the latest figures. The Minister may correct me if he has different figures, but 75 per cent. of house purchases, as he rightly pointed out, do involve mortgages. Whatever the figure, a large number of properties would profit from my proposal, even if we are dealing with just one year. The Minister has already acknowledged that I may be right, and that the period would be longer than a year. He suggested 18 months. I would argue, based on the example that I gave of the building regulations, that it might be longer than 18 months because of the complexity of these proposals. Either way, the large number of people who would benefit are worth more serious consideration than the Minister is giving. He said that my proposal would be a nightmare to introduce and that it would be difficult to train all these people. If that were so, why, such a short time after my hon. Friend the Member for West Devon and Torridge (Mr. Burnett) introduced his Energy Efficiency Bill and the hon. Member for Eltham (Mr. Efford) introduced his version of that Bill, did the Minister say that it would be possible to introduce legislation within 12 months? Presumably, he was acknowledging that all the necessary training could be done within that period. I hope that he will acknowledge that that is what he is saying. If he has different information, perhaps he will tell us?

Nick Raynsford: What I referred to as a nightmare was not the training requirement for the seller's pack scheme with the energy efficient report as part of that, but two separate training and accreditation schemes running in parallel. The new scheme for the seller's pack will be integrated with the energy efficiency report while the other scheme, which is the subject of the hon. Gentleman's new clause, would not and would have to involve a separate commissioning body, notably the lender. That duplication of effort would create the nightmare.

Don Foster: I am surprised that the Minister uses that argument, which I suspect should be consigned to the bottom end of arguments as argument Z. His argument has been about the bureaucracy applying to the scheme, not the issue of the training of people. I make no bones about the fact that there would be two different approaches. However, the key issue is the fact that the people who would carry out those surveys would be the same as those who, under my proposal, would be trained perhaps 18 months earlier than they would under the Minister's scheme. The great problem that the Minister claims training all those people would cause simply would not occur—as is demonstrated by his acceptance of the proposals of the hon. Member for Eltham.
 The Minister is shaking his head; again, I have not convinced him on the issue. That is a pity because more than 250 Labour Members of Parliament have indicated their desire to see the measure introduced. Not pushing the matter to a vote would at least allow not only the Minister to reflect but those 250 Labour Members of Parliament—and no doubt many Conservative and Liberal Democrat Members—to talk to him about the issue. Maybe, with a bit of time on our side, we may persuade him to change his mind. 
 I will, with deep regret, withdraw the amendments, but I hope that it is understood that if we do not receive satisfaction from the Minister at a later stage we will bring similar amendments back on Report.

Tim Loughton: On behalf of the Opposition, I welcome you to the Chair, Mr. Stevenson. I am that sure we will find the Committee as enjoyable as we did this morning.
 I am not convinced by what the Minister said. The hon. Member for Bath said that he would withdraw the amendment reluctantly, but the logic of what the Minister said this morning is that such matters have to be left to regulation and that the Committee and the House have to rely on the good will and the good sense of the Secretary of State of the time to ensure that the energy efficiency requirements, of which the Committee apparently unanimously approves, will be included in the seller's packs at some stage after 2003, by which time a further 3 million properties will have changed hands without an energy efficiency requirement as part of the sale. As I said, that is an enormous lost opportunity. 
 The logic of the argument is that nothing can be made an exception, even though, as the hon. Member for Bath has said, certain specifications are, notwithstanding, listed. The two examples of other lobbies that might ask why they were not represented in the specifications for seller's packs in the Bill—the disability lobby and those with an interest in flooding—are both important. As the chairman of the Conservative disability group I agree on the importance of disability considerations in housebuilding and related matters. Nevertheless, surely other aspects of the law—certainly with respect to disability—cover the building or adaptation of homes, or making them available for public access. Those matters are already covered—although some might say inadequately—and can be improved within existing legislative frameworks.

Nick Raynsford: I confirm the hon. Gentleman's point that part M of the building regulations sets the regulatory framework for standards of disability access. Of course, he will know that part L covers energy efficiency, so an exactly comparable set of building regulations exists for each area of concern. We are considering not the building regulations but the obligations with respect to the contents of the home condition report in the seller's pack. It would be inconsistent to refer to an obligation relating to one set of building regulations but not another.

Tim Loughton: Indeed, but building regulations apply to new buildings, rather than to existing ones. The vast majority of the properties affected by the Bill will be existing properties changing hands, not new or recently-built properties that have been subject to the regulations.
 My point is that disability considerations can and should be dealt with in other measures. As to flooding, the Minister knows—these developments have been debated in the House—that the Environment Agency has, since December, had a computerised flood map so that any prospective buyer can tap a postcode into the website and see the area's susceptibility to flooding. I agree that the specifics—whether No. 3 Acacia avenue may be more susceptible to flooding than No. 7 or No. 9—may not appear, but a general idea will be available. Indeed, there is a question whether greater duties of disclosure should be included in the Bill, in preference to the rather more prescribed surveyor's report, requiring sellers to make clear what damage might have been caused by flooding in the past. 
 Of course, the damage that might have been caused by flooding would not be revealed in a survey if, as my hon. Friend the Member for Cotswold (Mr. Clifton-Brown) made clear this morning, that survey was conducted for a seller's pack before the serious flooding. Without any duty to establish the shelf life of a survey, or to conduct a refresher survey, the Minister is condoning the purchase of a house on a seller's pack that could contain an out-of-date surveyor's report. That is the logic of what he said this morning. 
 I am glad that the Minister mentioned the many energy efficiency promotional schemes that have been continued under this Government, but which originated and were much promoted under the previous Government. It was a shame that, yet again, the Minister resorted to a distortion of the truth, by repeating the oft-quoted, but rather misleading fact about the pension that the next Conservative Government will pay to all pensioners. It will include the winter fuel allowance, which will be available to all pensioners, and for which the tax allowances will be raised, so that nobody will suffer any additional tax liability. Pensioners will receive it as cash in hand on a week-by-week basis. 
 It will be up to those individuals to spend the money as they wish. They will have dignity, and Government's trust. Conservative Members trust pensioners to spend money as they see fit, and pensioners will receive more money than the sum of all the component parts that they currently receive on an annualised basis. They will receive that, and more, on a week-by-week basis and spend it as they wish. The Minister knows that those are the details of the policy and it does him, and the Committee, no service to repeat that distortion time and again. The fact that he tried sneakily to insert it into the debate on the amendments relating to energy efficiency smacks of desperation. 
 We are induced by the Minister to trust the Secretary of State. We are to trust a future Secretary of State, after 2003, whoever it may be, although it is highly unlikely that it will be the present incumbent, whether or not the Labour Government are still in power. We are to trust that that Secretary of State will include in the regulations the energy efficiency requirements that we want. Energy efficiency is probably the most relevant of all the considerations that the Minister has listed in terms of disabilities and flooding potential, and it applies to the fabric, running costs, affordability and sustainability of a building. It should be placed right at the top of the list for inclusion in the seller's packs, if we are to have them at the point of sale. The failure to do so strikes me as the most enormous lost opportunity. 
 The Minister, and so many of his colleagues, has supported similar measures in various Bills, and now, at the last post, he has decided that such measures are not to be included in the Bill. However, we will not give up, because there is pressure from Labour Back Benchers and from the Opposition, who want the measures. We have already made workable proposals, which would not require much effort to implement. 
 Reluctantly, like the hon. Member for Bath, we shall not press our amendments. In not doing so, we hope that the Minister will think the matter through, and return on Report agreeing to a multi-party approach to place the energy efficiency considerations at the heart of the Bill. In his heart he knows that he supports the measures. Let us see his actions reflect the words he used while in opposition.

Don Foster: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Geoffrey Clifton-Brown: On a point of order, Mr. Stevenson. I have noticed that
 the hon. Member for Corby (Mr. Hope), the Minister's Parliamentary Private Secretary, has been making signs to a lady on the Press Bench who is wearing a red sequinned dress. I have noticed also that he has been giving her in-depth briefings outside the Room. I may be wrong, Mr. Stevenson, but I do not recognise the lady—[Laughter.]

George Stevenson: Order. I hesitate to speak while the hon. Gentleman while is making a point of order, but he should not be interrupted.

Geoffrey Clifton-Brown: I am grateful, Mr. Stevenson. I shall start that point of order again because it is important.
 I have noticed that, throughout the Committee's sittings, the hon. Member for Corby has been making signs to the lady on the Press Bench wearing a red sequinned dress. He has also been giving her in-depth briefings outside. That would be fair enough if she were a bona-fide member of the press, but I do not recognise her as such. I ask you, Mr. Stevenson, to confirm who she is and what organisation she represents and, if you do not know, I would ask you to cause inquiries to be made. If it turns out that she is not a genuine member of the press, would you confirm that she is not entitled to sit on the Benches reserved for the press?

George Stevenson: I am not clear what the rules of the House say on the matter. I take note of the hon. Gentleman's point of order, and I shall have the matter checked. Once I have clarification, I shall make a ruling.

Nick Raynsford: Further to that point of order, Mr. Stevenson. It may help the Committee if I clarify the precise status of the first—

George Stevenson: Order. I have responded to that point of order. If the Minister can help the Clerk in his investigations, I ask him to do so without taking up the Committee's time. Once the matter has been clarified to my satisfaction, I shall make a ruling. I wish to leave it at that, but anyone who wants to offer assistance to the Clerk should do so as quickly as possible.

Nigel Waterson: I beg to move amendment No. 49, in page 1, line 18, leave out `or may become'.

George Stevenson: With this it will be convenient to discuss the following amendments: No. 33, in page 1, line 22, leave out
 `it is taken off the market' 
 and insert 
 `the agent's instructions shall be terminated in writing'. 
 No. 52, in page 1, line 22, after `or', insert `it is'. 
 No. 50, in page 1, line 24, leave out 
`or to a section of the public'.

Nigel Waterson: While the Minister is assisting you with your inquiries, Mr. Stevenson, I shall move this group of amendments to clause 1. We are beginning to strip away the hype and salesmanship.

Geoffrey Clifton-Brown: On a point of order, Mr. Stevenson. For the record, I notice that the lady has left the Room rather quickly. I notice also that the Minister's Parliamentary Private Secretary and the Government Whip have left. I am now even more concerned that my suspicions are right and that she may be the Minister's special adviser.

George Stevenson: Order. I have responded to that legitimate point of order. I do not wish the Committee's time to be taken up by pursuing the matter on the Floor. Once I have clarification, I shall rule accordingly—and I hope that the hon. Gentleman will be satisfied with that response. However, I take his point that we need to deliberate the issues before us with due seriousness, and I am sure that the Committee will want to do just that.

Nigel Waterson: Thank you, Mr. Stevenson. I hope that, before any more Committee members leave the Room, I can impress upon them the advantages of the amendments. We are now coming to the detail of the Bill, and, like a bad play, it is falling apart in the first act. The Government, who are never knowingly undersold, are selling the Bill as a marvellous consumer protection measure and are trying to persuade the people, whom they assume will be gullible enough to fall for it, that it will improve their lot when it comes to buying and selling houses. However, as we know from even the most cursory examination, the Bill will add to the cost of moving home, bureaucratise the system of buying and selling homes and criminalise those perfectly law-abiding, decent citizens who are trying to go about the simple business of entering freely into contractual relations.
Amendment No. 49 would remove from the definition of
to put on the market
 the fact that the property 
may become available for sale.
 We cannot understand what those words add to the definition and we believe that it would be impossible to enforce. It would be interesting to hear the thought processes behind that. What exactly are the Government driving at? 
 Many people suggest that they might intend to sell their property at some time in the future, but do not do so. The Government are masters of the law of unintended consequences, and one of the side effects of the Bill is that many properties that might have been placed on the market will not be. We will deal with that in a little more detail later. The sad truth is that many people will think twice before putting properties on the market and incurring the sort of front-loaded costs that the Government are trying to impose on them. 
 The phraseology is incredibly vague and ambiguous. Would clause 1(4) be triggered if David Frost or some other interviewer were to ask the Secretary of State for Northern Ireland whether he was selling his flat, and he replied that it ``may become available'' at some time in future? Are not the words ``fact'' and ``may become'' contradictory in the context of clause 1(4)? 
 We were encouraged to table amendment No. 33 by the National Association of Estate Agents, which was clearly worried at the implications of the current wording. We are attempting to clarify the definition of the phrase, 
is taken off the market.
 One of the strange aspects of this part of clause 1 is that it is vague about what constitutes putting something on the market, and almost equally vague, if not more so, about what constitutes taking it off the market. It seems a perfectly sensible precaution to add to the Bill a proposal that, when estate agents are involved, there should be written instructions to the agents formally requesting them to take a property off the market. 
 Let me be the first to accept the suggestion that the amendment is not necessarily watertight. If the parliamentary draftsmen can do better, they are welcome to try, but it is a useful probing amendment. 
 What is the definition of taking a property off the market? I am sure that we have all come across situations—we may have even had to endure them—in which a property is put on the market and languishes there for weeks or months with no great interest, no one coming to see it and certainly no one making an offer. At some point during that period, the would-be sellers might tacitly decide not to proceed any further, but they might leave the advert for the property in the estate agent's window. 
 It is not unheard of for adverts for properties that have been sold or on which an offer has been accepted to remain in an estate agent's window. Similarly, it is not unheard of for agents to keep their ``For Sale'' and ``Sold'' boards outside properties long after it can be justified. I recall that, during our time in government, we had to legislate simply to deal with the nuisance of far too many such boards being up in a certain locality. From memory, I think that we changed the law to say that only one board could be outside a property at any one time. 
 When people instruct an agent to take a property off the market, it should be a requirement in law that they give notice in writing of that intention, to avoid uncertainty. It also seems that competent estate agents should probably already require notice as a matter of good practice. My amendment does not even try to deal with the problem of someone not using an estate agent and trying to sell a property privately, which also needs tackling. It would be interesting to hear what the Minister or those advising him have to say on that issue.

Geoffrey Clifton-Brown: It might save the Committee time and me having to make a speech if I say that, as well as the question of selling privately, we must also consider the issue of private individuals doing swaps, which is not unknown. If a private individual swaps a house with another private individual, would they both have to prepare seller's packs?

Nigel Waterson: My hon. Friend raises a separate issue, but it is related and important. I do not think that the Bill, from my reading of it, even begins to deal with that situation, which is not uncommon these days. The Minister clearly has the answer, judging from his expression, so I shall await his comments.
 I was about to say that one might look to the explanatory notes for guidance, but paragraph 39 states somewhat unhelpfully—I mean no disrespect to the officials who drafted it—that ``taken off the market'' is 
an ordinary expression which should be given its usual meaning.
 That is the sort of phraseology that lawyers love to see. I do not know what its ordinary meaning is. Lawyers could and no doubt will spend a long time arguing about it. On my cursory attempts, I have been unable to find any examples of parallel legislation in which such expressions are use. I am not saying that are no such examples, and if there are, it would be important to try to make the Bill consistent with them. 
 Some examples are given in the explanatory notes, such as 
putting up a sign which says...``sold''.
 As I suggested, in the real world rather than that inhabited by the drafters of the Bill it sometimes takes a while for a ``For Sale'' sign to be replaced with a ``Sold'' sign, let alone for a ``Sold'' sign to be taken down. The Bill does not even contain a definition of the word ``sold''. Does it mean sold subject to contract, or where contracts have been exchanged? 
 Other examples have come up in discussions among our team on the Committee. Some estate agents publish a monthly magazine containing properties on their books, but sometimes, in a fast-moving market, one might ring up and find that almost before the magazine has gone to print, and certainly before the end of the month, some of those properties will have been sold or are under offer. The basis on which properties are taken off the market is something that must be made much more apparent in the Bill, and we hope that the Minister will have something constructive to say about it. 
 The third main amendment—amendment No. 52 is a drafting amendment—is amendment No. 50, which would take out the concept of 
a section of the public 
when advertising a property for sale. If I may make a general point, subsection (6) is a most curious piece of draftsmanship. In its entirety, it states: 
 A fact is made public when it is advertised or otherwise communicated (in whatever form and by whatever means) to the public or to a section of the public.
 I do not understand why there has to be a reference to a section of the public, which is why we tabled the probing amendment. The expression seems redundant, but it raises some interesting issues in the general law. 
 The issue came up in a different field of law, in the case of the Race Relations Board v. Dockers' Labour Club and Institute Ltd, which went to the House of Lords in 1974. It is perhaps an example of old Labour rather than new Labour. I see that one of the Ministers is familiar with the case. Working men's clubs belonged to a scheme enabling their million ``associate members'' to visit other clubs. A gentlemen called Mr. Sherrington was an associate member who received what their Lordships called the ``deplorable affront'' of being asked to leave the dockers' club because he was ``coloured''. A county court action ensued under race relations legislation and, quite properly, their Lordships took a dim view of the matter. 
 The significant point for our purposes is that their Lordships held that associate members—some 1 million individuals—were not a ``section of the public'' under the Race Relations Act 1968. Could this Bill cause a similar situation to develop, whereby large numbers of people are made aware of something under clause 1, but they do not amount to a ``section of the public''? That is worrying. We shall never know whether the parliamentary draftsmen examined the case of Race Relations Board v. Dockers' Labour Club and Institute Ltd., but if a significant phrase used in other legislation is adopted, it is important to assess the read-across to the present Bill. 
 Someone shouting ``I'm selling my house'' in a pub could, on the face of it, trigger the requirement for a pack—but the same words shouted in a working men's club would not. That curious problem must be resolved. The amendment is probing, but it raises an important point that the Minister must address.

Tom Brake: I take this opportunity to welcome you to the Chair, Mr Stevenson.
 I am disappointed that no suggestion was made—I was expecting it—about a secret deal between the Liberal Democrats and the lady in the red sequinned dress. To move quickly away from that subject, I rise to support the Conservative amendments.

George Stevenson: Order. It is a difficult matter, but further reference to people in the Public Gallery would be out of order. We should move on.

Tom Brake: Thank you, Mr. Stevenson. I shall try not to re-offend.
 The Liberal Democrats support amendment No. 49. It is absurd to claim that a residential property is on the market when the fact that it may become available for sale is first made public. As the hon. Member for Eastbourne said—[Interruption.]

George Stevenson: Order. I am becoming increasingly worried about conversations taking place in the Room.

Tom Brake: Thank you, Mr. Stevenson.
 As the hon. Member for Eastbourne said, there are many circumstances in which a casual conversation could give rise to the impression that a property might become available. My hon. Friend the Member for Bath will refer to that later. We want the vague phrase ``or may become'' removed from the Bill. 
 On amendment No. 33, there are many cases in which a property will not be marketed by an estate agent. Specifically applying the provisions to an estate agent may be too tight a definition, although the amendment is more precise than the clause's reference to property being ``taken off the market''. The amendment is an improvement, but it could be extended to a wider range of possible scenarios. 
 Amendment No. 50 would remove the words 
or to a section of the public.
 It is designed to elicit further information about the Minister's intentions. If I were to put an advertisement in the local Conservative ``In Touch'' newsletter, it would reach only a small section of the public in my constituency, whereas if I placed it in ``Focus''— 
Mr. Raynsford rose—

Tom Brake: I happily give way to the Minister.

Nick Raynsford: The hon. Gentleman might reflect that, by the use of those two terms, he has just contradicted himself and so provided a poor example.

Tom Brake: I have reflected at great length. I tend to put ``In'' and ``touch'' without a space, as it illustrates better what that newsletter seeks to achieve. To finish my point, if I placed the advertisement in ``Focus'' which is delivered to every household in my constituency, it would reach the public as a whole.
 The phrase 
in whatever form and by whatever means
 suggests that allowance is being made for electronic communications and the use of websites to advertise properties. We want to encourage such flexibility and to allow people to advertise on the internet without having to rely on the existence of a seller's pack for the property. If someone has chosen to advertise a property through an estate agent, it is clearly appropriate to have a seller's pack, but when an advert has been placed in a local newspaper or on a website, it is not. For those reasons we support amendment No. 50 and the others in the group.

Nigel Waterson: Another possibility has occurred to me. I do not know whether the hon. Gentleman has had a chance to reflect on the fact that, in some areas, particularly where desirable properties are involved, one hears of individuals, as well as estate agents, going around putting notes through doors inquiring about possible sales. A couple of relations by marriage were constantly receiving notes asking whether they wanted to sell because their home happened to be regarded as a jewel that comes up only once in a generation. How would that be affected by clause 1?

Tom Brake: I must admit that I had not considered that possibility. It could be that the mere acceptance of that leaflet, if it did not go straight into the bin, could indicate that the property might become available for sale in the future. I hope that the Minister will be far more precise about what he means by ``may become available'', because it could become the subject of much protracted argument if it remains in the Bill.

Nick Raynsford: We have had an interesting debate on some technically complex issues. I hope that it will help the Committee if I try to explain the purpose of the current wording, why it was chosen and, in particular, the significance of the phrase
to the public or to a section of the public
 which has preoccupied the Opposition. 
 Clause 1(4) and (5) define the circumstances in which a property is regarded as having been put on the market and the period during which it is regarded as remaining on the market. A property is put on the market when the fact that it is or may become available for sale is first made public. The effect of amendment No. 49 would be that a property was not regarded for the purposes of the Bill as being put on the market until the point at which it was available for sale. Any earlier marketing activity by the seller would not constitute putting the property on the market and would therefore not be subject to the obligation to have a seller's pack. That would open a potentially large and serious loophole, which sellers who were keen to evade the obligations of the production of the seller's pack could easily exploit. 
 If the amendment were made, a seller hoping to avoid the seller's pack obligation, could advertise that his property was likely to be available shortly and provide the address and other details in the hope that the potential buyer would take note and try to gain an advantage over other potential buyers by making a quick visit and putting in an offer. As the property would not have been put on the market, there would be no obligation on the seller to have the seller's pack. Several weeks and several hundred pounds later, the buyer could discover problems that he had not known anything about, but that he would have known about had the seller's pack been available.

Nigel Waterson: I do not want derail the Minister's train of thought, but those are quite complex points. He talks about some buyer coming along and making a quick offer. Does that not suggest that the buyer might also want to achieve a quick transaction and is therefore the sort of person who probably does not need a seller's pack in the first place?

Nick Raynsford: We have covered that ground before. Often, someone making a quick transaction is precisely the sort of person who would be best advised to have information available. We have talked about the problem that can arise when people make offers without full knowledge of a property's condition—it might be in poor condition or derelict—and are therefore at a disadvantage. It is in precisely those circumstances that we think the benefits of the seller's packs will be most applicable.
 The point that I was trying to make was that the amendment would provide a loophole, through which people could drive a coach and horses by saying that their property is likely to be available in order to evade the obligation of having a seller's pack. That is why we do not feel that the amendment is helpful. 
 Clause 1(4) does not mean that a housebuilder would have to have a seller's pack if he advertised that he was planning to build a new estate of houses and provided some general information about the types of houses and their attractiveness. We have all seen the sort of publicity material that is provided when new developments are being envisaged and, provided there was no detail about the number of the property itself, it would constitute general material that did not have the effect of putting an individual property on the market. The provision would not compromise the ability of housebuilders to produce advance publicity about the development of a particular new group of houses. The objection is not valid—the seller's pack obligation would not apply.

Geoffrey Clifton-Brown: The Minister will be aware that it is common practice among developers to pre-sell a house—to sell it before it is built. In such circumstances, at what point would the seller's pack have to be prepared?

Nick Raynsford: In the earlier debate, I made it clear that there should be a seller's pack for all sales, including new properties sold off-plan. There would be no obligation for a home condition report, provided there was a warranty or building guarantee of the sort provided by the National House Building Council or Zurich Municipal. However, there would be an obligation to prepare a seller's pack. As we discussed, housebuilders would want to produce material containing fundamental and necessary information, including the title deeds, other documentation and the contract. All those items are prescribed in the seller's pack, which the house builder would have to make available to process the sale. The seller's pack requirement would apply where a property was being sold off-plan, but there would not be a requirement for a house condition report.

Geoffrey Clifton-Brown: It is very important to clarify that point. Will the Minister state at precisely what point in the negotiations the pre-seller's pack would have to be prepared? He says that a home condition report would not have to be available. Given that in many estates each house is different, what information would have to be provided?

Nick Raynsford: The point I was making is that the seller's pack obligation would not kick in until the advertising identified the specific houses and the specific location of those houses. By that stage, the marketing operation would have begun. That would be the point at which marketing begins and the property is put on the market. That important concept is fundamental to clause 1, as it defines the point at which the obligation arises.

Geoffrey Clifton-Brown: This is an important point. It is common, especially in more desirable areas, for word get around that a developer is developing an estate. Someone interested in that estate can arrange a pre-sale with the developer. At what point in that type of arrangement would the pre-seller's pack have to be prepared?

Nick Raynsford: Let me try to help the hon. Gentleman by amplifying my previous remarks in which I talked about general publicity for the existence of a new development and what triggers the obligation to produce a seller's pack. Publicity from a housebuilder saying that he expects to have a highly desirable development of exclusive five-bedroomed executive homes in an area would not trigger the obligation. However, when the developer states that he has six properties for sale, each with a name and number identifying which one is available, the property is regarded as having been put on the market, and that is the point at which the seller's pack obligation would arise.

Tim Loughton: I do not think that we are getting to the bottom of the issue. Is the Minister saying that the seller's pack has to be made available when a property is advertised, even if the property has not been built and, as is often the case, only an artist's impression is available? Although we have agreed that there would not be a home condition report, there would still have to be things like damp-proof guarantees and a form of energy efficiency survey, as the Minister promised earlier. How can an energy efficiency survey be performed on a house that has not even been built?

Nick Raynsford: The hon. Gentleman is obviously unaware of the existing obligation on all builders of new properties both to survey and to advertise the energy efficiency rating when they make properties available.

Tom Brake: Will a slightly different timetable apply to the requirement for a seller's pack in relation to a development of a single property, given that there would be no need to notify that it was No. 1 such and such road, because it would be the only property on the site and clearly the one that was being advertised?

Nick Raynsford: The hon. Gentleman makes a valid point. In such circumstances there would be a borderline between the point at which the developers were thinking of building on the plot, which would not be at a point at which the seller's pack requirement would apply because there would be no indication of the character, size or nature of the property, and the point where the builder says that he is building a five-bedroomed property with specific characteristics on a particular location and that the property is to be available for sale at a given time. At that point, because there specific reference had been made to a paraticular property, the concept of being put on the market would apply. The notion of the single dwelling-house was discussed in this morning's debate. The hon. Gentleman asked a question about the reference to dwelling-houses, and that is the reference that would bite.

Tom Brake: On a related point, would planning permission have to have been granted for a development before a seller's pack had to be provided?

Nick Raynsford: Any potential buyer would be extremely ill-advised to enter into any negotiations about a property for which no planning permission had been obtained, because there would no guarantee that it would become available for sale. That is one of the good reasons to have a seller's pack, in which the necessary planning permission has to be identified. In practice, it would not be possible for a property to be sold under the seller's pack arrangement if there was a clear gap where the necessary planning consent ought to be, because it would be identified by the buyer's solicitor who would prevent the buyer from getting into deep water. That is one more strong argument in favour of the seller's pack.

Brian Iddon: For the record, will my hon. Friend make clear the position of a registered social landlord selling a house with shared ownership. Would it be covered by the Bill?

Nick Raynsford: The obligations apply where properties are being sold. There is an equity element when such a property is sold and it is my understanding that the provisions would bite. I will take further advice, because shared ownership can take several different forms and I do not want to mislead the Committee by giving a blanket response. Subject to considering the issue more thoroughly, I think that, in principle, the answer that I have given is correct and that the provisions will cover the circumstances my hon. Friend describes.

David Curry: In the event of the sale of a council house to a sitting tenant, who presumably knows all there is to know about the house, will a seller's pack be required?

Nick Raynsford: This morning, we debated whether vacant properties should be covered by a seller's pack; the issue raised by the right hon. Gentleman is the obverse of that coin. If the sitting tenant is a council tenant, he will usually purchase the property under the right to buy, whereas a private tenant may agree by private treaty to purchase from the landlord. In all normal circumstances, the seller's pack will apply to such transactions. The local authority will provide the seller's pack as part of its response to the right-to-buy notice, and the private landlord will be obliged to prepare a seller's pack.
 I have given a slightly cautious answer, as the right hon. Gentleman will have noticed, because I intend later to deal with private sales between private individuals or family members in which there is no wider public involvement. Such sales will not be covered by a seller's pack. There is potential for a landlord and tenant to have such a private relationship, whereas, obviously, the provision will not apply to a local authority selling under right-to-buy legislation. A seller's pack will not necessarily be required if a private landlord has a close personal relationship with a private tenant and they agree a private transaction that does not involve any other party.

David Curry: I seek clarification. Because there is inheritance of tenure, it is entirely possible that someone who has lived in a council property for 20 years, or someone whose parents lived in the property, will buy it. Is the Minister saying that a seller's pack is needed even when people have lived in a house for a long time, have urged the council to make constant improvements and therefore know a great deal more about the house than the landlord does? Would an exemption not make sense in cases involving those who have been tenants for a long time?

Nick Raynsford: I am surprised by that question, because the right hon. Gentleman held the office that I hold and will be well aware of the number of council tenants who come to us as Members of Parliament with complaints about problems with or defects in their property of which they were unaware when they bought it. We are concerned to ensure that individuals do not acquire properties with defects or problems that carry potential cost implications on which they have not been properly advised. That is why it is all the more necessary for people in the position he describes to have access to a seller's pack.
 On the question of how long a property remains on the market, clause 1(5) makes it clear that a property that has been put on the market—

Nigel Waterson: It might be better for the Minister to deal with my point before moving on. I thought that he intended to go into a little more detail on the private sale exception.

Nick Raynsford: I do.

Nigel Waterson: In that case, I shall subside and intervene later.

Nick Raynsford: I hope that the hon. Gentleman recognises that, when I give an undertaking to cover an issue, I do my best to so. As I mentioned at the outset and as our discussion has made clear, these are complex matters. I want to cover them in a logical sequence, which will, I hope, resolve some of the grey areas.
 Clause 1(5) makes it clear that a property 
which has been put on the market is...regarded as remaining on the market—
 and is therefore still subject to the seller's pack obligations— 
until it is taken off the market or sold.
 Being ``taken off the market'' is not defined in the Bill; it carries its common meaning. Essentially, a property is not ``off the market'' if there is still marketing activity. Amendment No. 33 would change that. 
 A property being marketed by an estate agent would be regarded as having been taken off the market as soon as the agent received a letter from the seller withdrawing instructions. The property would be off the market even if the agent carried on marketing the property, without instructions, in the hope of achieving a sale and persuading the vendor to change his or her mind. That runs contrary to the public understanding of when a property is taken off the market, and it is completely at odds with clause 2 subsections (4) and (8), which the Opposition have not sought to amend. That would be a clear recipe for confusion. Clause 2(4) provides that 
The responsibility of a person action as estate agent cease when both of the following conditions are satisfied, namely— 
 (a) his contract with the seller is terminated...and 
 (b) he has ceased to take any action which makes public the fact that the property is on the market.
 I hope that the hon. Gentleman realises that it is important that both tests should apply.

Tim Loughton: For want of being picky, it is fairly common that a seller's board would still be standing outside a property—on my understanding of the Minister's definition, that would amount to marketing—even once the agent had received an offer that had been accepted subject to contract. The agent would still be legally obliged to pass on to the vendor any further offers that he might receive, but he may not get round to taking down the board immediately, especially if the offer was made on a Friday. In such circumstances, and if nothing else happened during the weekend, the board would still be in place on Monday or Tuesday. That surely constitutes marketing. It is the other side of the two terms that the Minister has defined. It does not get round the problem.

Nick Raynsford: The hon. Gentleman is absolutely right that the property would still be on the market, because the advertisement seeking to attract potential buyers would still be in place. Two points should be made. First, there will be no problem if the marketing is being conducted properly with a seller's pack, because the seller's pack would continue to be available to cover that period. Secondly, we are obviously interested in getting expeditious responses to instructions to cease marketing, and we want estate agents to act as quickly as possible in order to avoid confusing the public. It is far more sensible to link the two, rather than to say that no obligation exists once the seller has sent instructions cancelling the sale. In the latter case, there would be no incentive for the estate agent to remove the sign because there would be no liability. Although I accept that it will happen, it is a good thing to have an incentive for the agent to remove the sign expeditiously after instructions have been withdrawn.
 Amendment No. 50 would restrict the seller's pack obligations.

Tim Loughton: I am confused by that answer. What is the incentive for the agent to take down his board? Surely the incentive is for him to continue to market the property for as long as possible in the hope of getting a higher offer, on which he would gain higher commission. I do not understand why those two requirements—receiving written instructions from the vendor and stopping marketing—should act as an incentive for the agent to fulfil his side of those two criteria.

Nick Raynsford: The incentive is that the agent would still have the obligation to maintain and have available a seller's pack, because the board would still be on site advertising that the property was for sale and individuals could respond to it. Clearly, one wants a framework under which estate agents would respond expeditiously to an instruction that the property be taken off the market by taking the property off the books and removing signs advertising that the property is for sale.

Tim Loughton: First, how does one guarantee that? Secondly, is the Minister saying that it is a real deterrent to an estate agent to have to continue to maintain a seller's pack—that is, to have a quantity of them in his office? Surely, the estate agent would like to get rid of as many of those seller's packs as possible on the basis that they cost money to produce and because he would be remunerated for the cost by those who ask to see them. That is no disincentive whatever.

Nick Raynsford: We are getting into extremely esoteric territory. Regardless of whether that would be a disincentive to the estate agent, it cannot be part of an efficient operation for such an agent to seek to shift packs by keeping a notice board up when a property has been withdrawn from the market. We have set out a clear framework in clause 2(4). It states:
 The responsibility of the person acting as the estate agent ceases when both conditions are satisfied.
 The first of the conditions is that the contract is terminated, and the second is that the agent has ceased to take action that makes public the fact that the property is on the market. That is a common-sense response to real-world situations. 
 Amendment No. 50 would have the effect of restricting the seller's pack obligations to sellers who market their homes to the public at large. To exclude marketing to a section of the public from those obligations would open the door to abuse. Sellers wishing to avoid the seller's pack obligations could do so by ensuring that their marketing activities were restricted in some way. They could market to a wide range of people, but providing that their marketing was restricted to a section of the public rather than the public at large, they could claim that they were not marketing their property. That would be a major loophole in the Bill. 
 It is not our intention to catch private transactions where, for example, a home is offered to a family member, a friend or to another individual. That is the reason for the wording of (1)(6), which states: 
 A fact is made public when it is advertised or otherwise communicated...to the public or to a section of the public.
 That phrase has precedents. The hon. Member for Eastbourne has done his homework, and has identified the precedent contained in the Race Relations Act 1968. However, there are others. The phrase is used in the Food Standards Act 1999, the Data Protection Act 1998, the Confiscation of Alcohol (Young Persons) Act 1997, the Disability Discrimination Act 1995 and elsewhere. The purpose of the phrase is to separate a transaction that involves the public or a section of the public from a purely private transaction.

Nigel Waterson: I assume that the Minister will say that that is all to be subject to draft regulations. However, he set out three categories: family member, friend and individual. I can already discern a host of definitional problems with those categories. Leaving them aside, what about the man in the pub who is not a friend or a family member? Let us imagine a group of individuals in a pub, one of whom responds to the chance remark, ``I may be making my property available for sale,'' by saying, ``Come outside, I'd like to have a word with you''—not for the purposes of resolving any animosity between the parties, but because he wants to make a quick cash offer, without having to pay for seller's packs or estate agent's commission. What about that?

Nick Raynsford: I will not pursue that example, which seems unlikely to prove a satisfactory basis for a sale. There is a clear distinction to be made. If the individual in that example stands on a stool in a pub and shouts, ``My house at No. 74 Acacia Avenue is, or may be, available for sale,'' there is no question that that constitutes marketing the property, because the individual is advertising that a specific property is for sale to a section of the public. If, however, the individual meets another individual in a purely personal contact—

Nigel Waterson: Not in a pub.

Nick Raynsford: It could be in a pub, it could be anywhere. It could even be in the Conservative club, if people still go there. Any such contact, providing that it involves only one other individual, and providing also that the property is not made more widely available, is, effectively, a private transaction. The same would apply to the swaps example given by the hon. Member for Cotswold, in which a swap was arranged between two parties who negotiated freely with each other and had no involvement with other parties. The crucial distinction is between a private transaction—one between family, friends or two individuals in which there is no other party involved—and a marketing operation that seeks to make information available to the public or a section of the public.

Nigel Waterson: I do not want to pursue the example too far, because that way madness lies for the Minister and me. Let us assume that the owner of 74 Acacia Avenue goes to the pub and, instead of standing on a stool to announce to a section of the public that his house may be available for sale, he is astute enough to have read the report of our proceedings and sidles up to a succession of individuals at the bar during the course of an evening. He engages them in idle conversation about the property market, but slips in the fact that 74 Acacia avenue, his home, might be available for sale in the foreseeable future and—bingo!—one of them says, ``Well, funnily enough, I've always wanted to live at 74 Acacia Avenue,'' and so a transaction ensues.
 I say that not because it is absurd—I am not sure that it is that absurd—but as an example of how difficult the Minister will find it to provide a definition.

Nick Raynsford: The hon. Gentleman is performing a perfectly proper activity, especially for the Opposition, which is to explore every possible circumstance to test the Bill. In the event of an individual doing what he described—approaching several different people—the individual is clearly seeking to market the property. One of them might happen to be a trading standards officer or to know the local authority trading standards officer, which would clearly lead to a reminder that the individual should have a seller's pack, as he is putting the property on the market.
 The hon. Gentleman will know, as we all do, that although distinctions of such a nature are extremely important, there will always be fuzzy edges. It is impossible to have a precise borderline between one set of circumstances and another. The purpose of the law is that it should take account of normal circumstances, be practicable and comply with what people sense is the right distinction. 
Mr. Brake rose—

Nick Raynsford: I will give way to the hon. Gentleman in a moment; I have noted his waving hand. The law should ensure that people can act in a way that they recognise as sensible. A distinction is to be drawn between a private transaction and the marketing of a property. There will always be questions around the borderline, but the distinction between the two is sensible, and most people will recognise it as a proper base.

Tom Brake: I simply want to clarify whether the following is one of the fuzzy areas to which the Minister referred. Would it constitute a private sale or a public transaction if a parent offered a property to one or other of his or her two children?

Nick Raynsford: I said earlier that the seller's pack would not be required when a home was offered to a family member, a friend or an individual. In that case, the family definition would apply, and because it was entirely within the family it would not be a public transaction.

Tim Loughton: The more that we debate the subject, the more that reasonable instances arise, and I want the Minister to consider another. It is quite common for parents to put a property in trust for, say, their son and daughter. The trustees of that trust fund would typically be a financial adviser, a solicitor, an accountant or whatever. The trustees, who are technically the owners of the property, are not family members connected with the son and daughter who are the beneficiaries of the trust, and are not friends either, in the normal sense of the word. Would that constitute a private sale exempt from normal considerations?

Nick Raynsford: Because the trustee would be acting in a professional capacity, my understanding is that that would not be a private transaction, but one by an agent. It is absolutely clear from the legislation that such trustees, although perhaps not technically estate agents, are acting as agents for the people for whom their trust applies.

Tim Loughton: I am not a lawyer, but I do not think that that is right. Trustees are effectively owners of the assets of a trust. They are not acting as agents, but as the owners of the trust. Theirs is the decision as to the disposal of the trust, acting within the terms of the trust deed. They are entirely different from and cannot be compared with estate agents or any other agents.

Nick Raynsford: The distinction that we are making is that a sale by an individual to another individual or within the family may be exempt, as it is a private transaction. A sale through an agent—``agent'' is not defined as ``estate agent''—will in all circumstances require a seller's pack. In individual cases, facts about the roles of the trustees will need to be considered, such as whether they are acting on behalf of the beneficiary.

Tim Loughton: They would be trustees.

Nick Raynsford: Well, the trustee could be acting on behalf of the beneficiary, and could be seen to be an agent acting for that person. I am not a lawyer either, and the facts of the case would clearly need to be considered. The principle that I have tried to clarify is that there is a distinction to be made about someone acting as an agent for the owner of the property or the beneficiary. For example, executors acting for someone who is deceased are clearly acting as professionals on behalf of the individual who owned the property.

Tim Loughton: I shall try one last time. It might be useful for the Minister to come back to the subject later, as the occurrence that I describe is not rare. The two ends of the transaction are that a mother and a father are, say, handing on property assets to a son or daughter. There is a clear family connection. The only people involved in that equation are mother, father, son and daughter. The transaction could be carried out through the conduit of a trust for tax reasons or perhaps because the children have not reached maturity. In the spirit of the terms that the Minister sets down, the transaction is surely a family one, yet he is clearly saying—and I think that he is wrong in his definition of the agency role—that it would not count as a family transaction. Will he return to us with a more considered reply?

Nick Raynsford: In that specific case, it is likely that my earlier example would apply and that the sale would be seen as one within the family. [Interruption.] The hon. Gentleman described a situation that involved four family members—a mother, a father, a son and a daughter. As only those members of the family are involved, that seems to be a transaction within the family.
 The hon. Gentleman raised the subject of trusts in his earlier question. I may not have heard him clearly, but I thought that there was a wider application, as trusts exist for a variety of purposes. I was simply explaining that, when a trust was selling an asset on behalf of its beneficiary, I would see it as being likely to qualify as the agent. I stressed that much depended on the facts of each case. I accept that the subject is highly complex, and I am more than happy to take further advice and to write to all members of the Committee, and to you, Mr. Stevenson, clarifying that point. It is complex territory, but we are trying to establish the distinction between a purely private transaction and something that involves the wider public. 
 Amendment No. 50 would extend far beyond the sort of private arrangements to which I have referred. It would result in a large number of sales being conducted without seller's packs, which would have the wholly undesirable effect of bringing about a two-track transaction process where, in a chain, sales without seller's packs would delay and endanger transactions with them. 
 The hon. Member for Eastbourne was right to say that amendment No. 52 was significant. It would correct a drafting error in amendment No. 33, so we can pass over that. 
 Other issues were raised. I have dealt with the question of swaps raised by the hon. Member for Cotswold. I have dealt with the lack of a definition of ``taken off the market''. The hon. Member for Eastbourne asked about the definition of ``sold''. Clause 1(7) includes a definition of ``sale''. It is normal practice to construe the past tense accordingly. I hope that hon. Members will accept that the word ``sold'' is defined by inference from the word ``sale''. 
 These are complex and important areas. Given the information that I have outlined to the Committee, I hope that hon. Members recognise that the amendments are not appropriate and that the hon. Member for Eastbourne will withdraw them.

Nigel Waterson: We have a virtual smorgasbord of legal points to cover, and I apologise if I miss some. Even the Minister was struggling at the end, but we shall all read Hansard.
 I shall deal first with the last point—not in a gratuitous attempt to confuse the Committee but simply to ensure that I do not forget it. It was reasonable for the Minister to say that ``sold'' is the past tense of ``sale'', but subsection (7) provides that 
``sale'' means a disposal, or agreement to dispose, by way of sale of a freehold interest.
 Do I take it that it does not necessarily mean a concluded sale, but the acceptance of an offer, and whether that might also include an agreement to accept an offer subject to contract or survey? The Minister might want to write to the Committee about that, or we might become bogged down in detail. He is not a lawyer and I am not a conveyancer, and it would be wrong to answer such points on the hoof. 
 That brings me naturally to the next point, which is the question of trustees. My hon. Friend the Member for East Worthing and Shoreham has stumbled across an important point. I commend him, a non-lawyer, for that.

Tim Loughton: I did not stumble on it.

Nigel Waterson: I withdraw my reference to stumbling. In his usual fashion, he incisively cut to the heart of the clause. It is first-year law student stuff, but we do not have a first-year law student here. The point of putting property in the hands of a trustee is to ensure that the property is effectively invested in the trustee for the beneficiary and possibly subject to the terms of the trust. People make trusts for tax purposes—to remove money from the immediate control of the beneficiary so that the beneficiary does not have to stump up a lot of tax unnecessarily.
 I would not presume to provide the answer to such complex issues, but they should be dealt with. I appreciate that this is complex, but Opposition Members are all doing their best to improve the legislation and the regulations that will be made under it. I hope that the Minister is suitably appreciative.

Geoffrey Clifton-Brown: Does my hon. Friend accept that some of those trusts are set up specifically for sale to a beneficiary under certain circumstances—for example, when that beneficiary attains the age of 21 or 30? Under such circumstances, there is every expectation at the inception of the trust that the property will be sold to a beneficiary who might be related to the trustees. That would seem to fall within the Minister's definition of close family.

Nigel Waterson: It may well do. My hon. Friend makes an important point. We are all in the business of trying to produce legislation that will withstand the test, not only of time, but of litigation. Clause 1 is fraught with potential problems. If law is certain, the potential for lawyers to wax rich and successful on advising people is reduced, as is the prospect of litigation.

Andrew Love: I approach the matter with some trepidation, not being a lawyer. However, my understanding of a trustee's role is that he or she is impelled to maximise the benefit to the beneficiary. When the beneficiary is not a close family member, is the trustee obliged to advertise the sale rather than keep it between two parties?

Nigel Waterson: Not necessarily—as was being said, sotto voce, during that intervention. However, that is often the case, and the issue is related to that of gazumping, a word that, curiously, has not crossed anyone's lips so far. You will forgive me a small digression, Mr. Stevenson, I know. It is extraordinary, given that the Bill was hyped on the basis that it would solve the problem of gazumping, that I am the first member of the Committee to utter that word. It has certainly not passed the Minister's lips. It is interesting that under the sort of circumstances described by the hon. Member for Edmonton (Mr. Love) trustees are sometimes under a legal obligation to get the best possible price, and are therefore under a legal obligation to gazump. That is one of the practical difficulties that have, presumably, made the Government back off from the whole idea of tackling gazumping in any radical way.
 The Minister talked about the use of the phrase ``available for sale'', saying that it was a loophole, a coach and horses and so on. That may be right, and I would never claim that my draftsmanship is better than anybody else's—far from it. However, if one leaves vague phraseology in the Bill, one is asking for trouble. There may be other ways of approaching the issue, and I hope that the Minister will not have a wholly closed mind about that, even if I am minded to accept his point about a loophole. 
 I am still far from happy about the example of new developments, and ``off- plan'' being used to describe sales. As my hon. Friend the Member for Cotswold has said, it is very common for developers to acquire the land and put the whole deal together even before they have laid a brick or dug a foundation, because cash flow is king. They put together the famous artist's impression, which, as we all know, sometimes bears little resemblance to what actually happens. On that basis, an office is opened and a publicity and sales campaign is launched. I think that I am right in saying that that is one of the issues touched on in one of the Minister's most recent letters to the Committee about the potential contents of draft regulations. We shall return to it later, but I wanted to foreshadow the fact—as I did this morning, Mr. Stevenson—that when we reach clause 5, I shall want to debate draft regulations in greater detail. It verges on the pointless to debate draft regulations when we have no such regulations before us. 
 On the question of taking a property off the market, I see the force of the Minister's two-tests approach. Many examples have been tossed around the Committee of where it is unclear whether properties are being taken off the market. My hon. Friend the Member for East Worthing and Shoreham rightly said that there is often no incentive for agents to take down boards rapidly or to remove adverts about properties from their shop windows. Their reasons are commercial: we may not think them right or proper, but such action is likely when the market is slack and agents do not want to have gaps in the shop windows or because it amounts to free advertising. Few property sale boards fail to blazon the names of the agent in large letters across them. Taking property off the market is an important issue. 
 On private sales and sections of the public, the Minister has made it clear that private sales will not be covered by a seller's pack and that there will be no requirement to do so. It will be a matter for regulation, but once again we are in no position to examine the draft regulations. I repeat that we have reservations about how the regulations could be drafted in a watertight fashion. 
 The Minister referred to three broad categories: family members, friends or individuals. I see the force of arguing that family members should not be encouraged to squabble about sellers' packs or become embroiled in litigation. We believe that compulsory packs with the contents envisaged by the Government are not beneficial, but if we are going to have them, why should friends or individuals be excluded from the presumed benefits. Some friends are likely to become ex-friends as a result of the problems they encounter in the process.

Don Foster: The hon. Gentleman might care to reflect on the odd circumstances resulting from the Minister's earlier reassurance. A family living in a council house for 20 or more years would, even though it knew the property intimately, as described by the right hon. Member for Skipton and Ripon (Mr. Curry), still have to work through the system of sellers' packs because of the possibility that faults might be discovered. However, there would be no requirement for a seller's pack when a home is sold to a family member or friend who may not have lived in the property for any time at all and may have significantly less knowledge of it than the council house tenant.

Nigel Waterson: The hon. Gentleman makes a telling point, which I cannot answer. Fortunately, I do not need to because I am not the Minister, whose response would be good to hear. It is one of the contradictions that could be created in English law if we go down this route. I can quite understand why the Minister has felt pushed inexorably towards excluding people. Exclusions will be one of the big problems in the Bill, whether of areas, bands of properties, types of transactions and so on. It is rather like the A and B list argument, which we will all learn to dread in due course. It is an almost totally circular argument. Whenever one excludes someone, by definition there is a problem about who is in and who is out.

Geoffrey Clifton-Brown: We are in the business of producing good law that has as few defects as possible. Would it not make sense therefore to ask the Minister to have as few exemptions and exceptions as possible? In that connection, would it not make sense that if a seller's pack has to be provided under the terms of the Bill, it should be provided up to the point at which a legal contract becomes binding?

Nigel Waterson: That is one solution to the problem. My hon. Friend has come up with quite a good way around many of these problems. The better way out of it is simply not to make seller's packs compulsory. That is something to which we shall return in more detail. They should be optional. We shall shortly come to amendments that suggest that that might be possible and make it abundantly clear that sales are proceeding without seller's packs.
 Consider the man in the pub, the fabled resident of 74 Acacia avenue. Even a brief and superficial canter down that line of debate produces some strange anomalies. Yes, in the unlikely event that this gentleman stood on a stool and announced to everyone in the bar that his property was for sale or might be for sale, he would be caught. But presumably he would not be caught if he did so in the bar when there was only one other customer. My example of him sidling up to individuals as the evening wore on, giving them his sales patter and finally doing a deal might or might not be caught. Would it count if he were having an idle conversation with a friend who had no intention of buying his property, but someone else overheard? What if that conversation were overheard by someone else who informed on him to the conveyancing gestapo who came around to arrest him for breaking the law? 
 This is nonsense in the context of ordinary people going about their ordinary lives, trying to enter into contracts freely under English law. It is nonsense that criminal sanctions will be enforced by hard-pressed trading standards officers across the country. It is nonsense that someone might be caught simply because of the slightly different circumstances in which the conversation took place in the pub and which could lead to all sorts of difficulties, not to mention a criminal sanction. On all those grounds, subject to any other comments, we are not minded to withdraw the amendment. I am minded to press it to a vote.

Tim Loughton: I endorse everything that my hon. Friend has said. I should like to elaborate a few points that I made in interventions that the Minister did not answer satisfactorily. He said that there were a lot of fuzzy edges. That was to understate it enormously. The more we debate clause 1, the more of a black hole it turns out to be. When the Minister used the example of the property being offered to a family member, a friend or another individual as he put it, it opened the most enormous can of worms. I was expecting the Minister to use the precedent of the definition of the associate, as laid out in the Estate Agents Act 1979 and I gather from professional bodies that it may repay some revisiting. The definition of friend or another individual is certainly fraught with problems.
 We talked about the problems of trust funds holding property. I genuinely think that the Minister misunderstood the nature of the trust funds that I was trying to describe. It is a complex area and we are not experts on it. I have acted as a professional trustee in my previous life. I am still a trustee of both family funds and non-connected funds. I act as a trustee, jointly with other professional trustees—a solicitor, for example—of a trust fund that was endowed by a deceased grandmother for her three grandchildren. It is up to us how we administer that trust fund within the terms of the trust deed, but it is clear that the two connecting parts of that trust were the grandmother and the three grandchildren, who constitute family in any definition of the word. It was envisaged, as part of that trust deed, that the trustees would own property or make grants in order to buy property. My understanding of what the Minister said is that we would not gain an exemption under the definition of family because the trustees are not family members and would not, in the strict term, constitute friends of the beneficiaries.

Nick Raynsford: On my first understanding of the hon. Gentleman's example, when I understood the hon. Gentleman to be talking about a trustee acting on behalf of another party, I thought that that person would be fulfilling the role of an agent and would therefore probably be required to have a seller's pack. On further clarification, the hon. Gentleman made it clear that he was referring to an entirely internal arrangement within the family. I then expressed a different view and said that it was not our intention to catch family transactions within the obligation of the seller's pack, and that such an example would be unlikely to be caught. I did say that I would look into it further and write to Committee members and the Chairman, and I will.

Tim Loughton: I am grateful and apologise if I have been unintentionally misleading. I am talking about normal trust funds and the relationships I have described. Notwithstanding what constitutes an individual or individuals in a pub for the owner of 74 Acacia avenue, the Minister has not dealt with the feasible situation where an individual acts through an intermediary—a friend and third party—who secures a buyer. An individual may tell someone in a pub that his property is on the market. That person, in a goodwill gesture, may put the individual in touch with a friend of his who wants to buy that property. It is not a person going around the pub hawking, it is simply a property being mentioned to a third party, who takes no commission, but who connects the vendor with a buyer. What is the situation there?

Nick Raynsford: I hesitate to ask the hon. Gentleman to look forward, but in clause 14, he will see the definition of the person acting as an agent. He will see that it is defined as someone effecting an introduction on behalf of the vendor. In the circumstances described, if an individual seeks to effect introductions in that way, he would come within the definition of acting as an agent.

Tim Loughton: I am sure, Mr. Stevenson, that you would not wish us to start looking at clause 14, which we will reach in the dim and distant future. In no way would Nobby in the pub, who meets the owner of 74 Acacia avenue, be constituted as acting as an estate agent, certainly if he is not taking commission. We will return to that later.
 There is another instance, which I think is more easily dismissed, but I would like confirmation. Let us take the example of Conservative clubs, of which I am glad to say that there are many and a growing number. Conservative clubs tend to be owned by trustees, as is the flourishing one in my constituency. If the trustees were to sell that club because it was doing exceedingly well and needed larger premises—a highly likely situation—and they were to make an announcement or issue a notice that could be seen only by other members of a private member club, does that fall foul of this? I am not talking about family members. It is a private club with private members. There are many types of private member clubs, some more salacious than the ordinary Conservative club, but perhaps the Minister would say whether private member clubs be caught.

Nigel Waterson: The question might be more piercing if the example involved not the club itself but a flat attached to the club. I assume that it would have to be a private dwelling, but I think that the same consideration applies.

Tim Loughton: Absolutely, that is yet another twist in the torturous argument that we are enduring.
 On the other issue of the definition of when the sale ends, would it not be sensible, as a way of getting round the two-pronged definition of when the marketing ends—in terms of the written confirmation from the vendor and the active ending of marketing by the agent—to have a time criteria? Then, on written instructions from the vendor that the house was no longer to be marketed, and that within three days or 48 hours or whatever, the agent should be required to have ceased marketing. That would include dismantling boards and would be an enormous incentive to take the boards down. 
 The previous Government, not the present Administration, had already legislated on the use of more than one board per property, as my hon. Friend the Member for Eastbourne has mentioned. I am merely offering a suggestion of how to get around what is a rather open ended two-prong attack. The definition, or the inclusion, of the word ``friend'' as an exemption, is very open-ended. It may be that vendors and prospective purchasers become the most gregarious people out socialising, because they will suddenly become great friends in order to avoid the expensive and confusing requirement for a full-blown sellers pack. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill. 
 Question agreed to. 
 Clause 1 ordered to stand part of the Bill.

George Stevenson: Before we move on, I wish to comment briefly on the points of order made earlier about the accommodation of officials, the public and the press in Committee Rooms. Broadly speaking, officials sit on the dais, the press in the part of the public gallery set aside for them, and the public in the remainder of the public gallery. Should the public gallery be full, I would expect members of the public to have priority there. Should the press bench be full, I would expect members of the press to have priority there. However, if those parts of the Room are not full, I have no objection to officials sitting in them, just as I would have no objection to a member of the public sitting on the press bench—if there were room. However, any Member seeking to communicate with someone in the public gallery should not do so in a way that distracts the Committee. I should therefore expect any communication between a Member and someone in the public gallery to take place outside the Committee Room.

Phil Hope: Further to the earlier point of order, Mr. O'Brien.

George Stevenson: I am not minded to continue with that matter. I have ruled on it. That is the end of the matter.

Geoffrey Clifton-Brown: On a different point of order, Mr. Stevenson.
 Since we are creating a precedent here today, I notice that the Clerk is using a computer. Would you rule whether it is in order for members of the Committee to use their computer, and if so, whether facilities will be made available to every member of the Committee so that the computer can be used on-line?

George Stevenson: I am advised that the Chairman's Panel has decided that Clerks can use such equipment. The other issue has yet to be formally decided. Clause 2 Responsibility for marketing a property which is on the market

Clause 2 - Responsibility for marketing a property which is on the market

Don Foster: I beg to move amendment No. 16, in page 2, line 11, at end insert—
`( ) A sale where a property is advertised for sale by a seller who has not instructed an estate agent, and in which the property is explicitly advertised as being ``sold without seller's pack'' shall be exempted from the legislation in Part I.'.

George Stevenson: With this it will be convenient to take amendment No. 34, in clause 3, page 2, line 41, at end insert
` , unless the property is explicitly advertised as being sold ``without seller's pack''.'.
 I am supposed to stand up when making such comments—I have been in and out of that pub so often that I am getting a bit tetchy.

Don Foster: Given your remark about your being in and out of the pub so much, Mr. Stevenson, which might of course be defined as ``premises licensed for the purposes of entertainment and the sale of intoxicating liquor'', I hope that before our next sitting you will have a further opportunity with your co-Chairman to look again at amendment No. 17. I note that it has not been selected for debate, although it specifically refers to those premises which you just mentioned.
 The debate on this amendment follows on from our debate on possible exemptions to the need to operate the system of seller's packs. All members of the Committee will be aware that, on Second Reading, the Minister received requests from his hon. Friends for possible exemptions, particularly in those areas where house prices are particularly low. The Minister and the Under-Secretary said that they were willing to look at ways in which that concern might be addressed, although the Minister rightly pointed out that he would be unwilling to do so if it were to lead to further complications and anomalies. 
 The purpose of amendment No. 16, by way of a closing amendment, is to address two issues. First, it aims to provide an affordable alternative for home sellers living in areas where properties values are very low, or where they are in financial difficulties. Secondly, it aims to address what could be argued as a civil liberties issue, one that the hon. Member for Eastbourne has described more graphically as relating to the nanny state of new Labour—whether it is appropriate for criminal law to be used to intervene in the making of civil contracts. The amendment proposes that in certain circumstances the seller's pack scheme should become optional. 
 The Minister's approach is to argue strenuously that there are enormous benefits to be gained from the seller's pack approach. Broadly speaking, and subject to getting right those details with which we are currently not happy, I would admit to agreeing that the seller's pack idea could enormously benefit people purchasing properties. I will accept the argument, even if the hon. Member for Eastbourne will not, that it could play a part in reducing the period of sales, and therefore help, to some extent, to relieve the problem of gazumping. 
 That does not necessarily lead me to believe that it should be axiomatic that everyone must operate the seller's pack approach. The amendment tests the Minister's views and questions whether it would be sensible for people engaged in a private sale, who were not using agents of any sort and who stated clearly that their home was being sold without a market seller's pack, to be exempted from the proposed requirement. Clearly, in those circumstances—as when a seller's pack was in use—the usual caveat emptor warnings would apply. A similar approach has been adopted in other cases. Increasingly, we see advertisements for second-hand cars being sold without an MOT. That clearly draws potential purchasers' attention to the circumstances in which the item is sold. 
 It strikes me that there is an opportunity to kill two birds with one stone. The individual who was trying to sell a property of relatively low value—the person about whom the Minister's colleagues were concerned—would be able, if he or she chose, to sell the property without recourse to the seller's pack, thereby reducing the upfront costs of that transaction. That might be a very important factor to the type of person described. On Second Reading, the hon. Member for Bassetlaw (Mr. Ashton) referred to auctions in south Wales and Northumberland where properties were sold for sums as low as £3,000, and other hon. Members gave examples of even lower amounts. The addition of an upfront cost to the seller of between £300 and £700 in those circumstances would create significant difficulty. 
 Under the proposals, a person might chose not to go for the Rolls-Royce approach by incurring agency fees on top of the cost of a seller's pack, but do the work himself or herself. Of course, in those circumstances, the Minister would say that there was perhaps an even greater need for the protection for the purchaser that would come from the seller's pack. That would have to be balanced against the argument as to whether the sale would be able to go through if a seller's pack were imposed. 
 A further point has been drawn to the entire Committee's attention by the Local Government Association. I suspect that, in the past 24 hours, most—if not all—hon. Members have received the association's up-to-date brief on this issue. It says that it is 
sympathetic to the amendment to exempt individuals from the responsibility of providing a seller's pack. There is concern by local government that individuals would face criminal proceedings for breaching these responsibilities, which would have to be enforced by local authority trading standards officers.
 The LGA believes that, although there is already a well-established procedure for local authority trading standards officers to deal with breaches of law by organisations and by companies, a different set of circumstances applies to the individual. Certainly, many changes would have to be made to the procedures adopted by trading standards officers if, under the criminal proceedings arrangements that pertain, an individual failed to use the seller's pack. Many changes would have to be made to the procedures adopted by local authority trading standards officers if, under the criminal proceedings arrangements that pertain, an individual failed to use the seller's pack. 
 The point is a simple one. Many hon. and right hon. Members on both sides have expressed genuine concerns about the arrangements as they affect low price properties. The amendment provides a way around that difficulty. There have been concerns about civil liberties, around which the amendment also provides a way because if an individual did not wish to adopt the approach of the seller's pack, he or she would not have to do so, provided he or she did not use an estate agent or any other agent and provided he or she marketed the premises as being sold without a seller's pack. 
 The amendment therefore kills two birds with one stone, although it is a probing amendment which enables the Minister to tell us what further reflections he has had on the concerns raised by several of his hon. Friends, in particular on the issue of low prices. I therefore very much look forward to the Minister's response. The hon. Member for Eastbourne has an associated amendment that would take the proposal a stage further and remove the requirement for everyone to adopt the seller's pack.

Nigel Waterson: The hon. Member for Bath has made many of the arguments that I would have made, and I agree with his basic thrust. However, we would like the amendment to go further, because it falls, yet again, into the black hole that is opening before us—the attempt to draw a distinction between private sales and sales through estate agents. Real life is not like that.
 Some people following our proceedings might be confused that amendment No. 34 amends clause 3. It has been grouped with amendment No. 16 because it deals with the same issue. Our amendment would make the seller's pack optional whether a property is being sold by a seller or by an agent on his or her behalf. It is a crucial amendment that has the support of the Law Society. Allowing sellers to opt out of using the packs would not put buyers at a disadvantage because it will have to be made clear at the outset that the seller's pack is not available or attached to the transaction. Buyers will be aware and on guard and they will, accordingly, be able to proceed under the principle of caveat emptor—which the Government do not appear to have tried to replace in the Bill. If on the other hand they have concerns about the property, they will be able to proceed with a different property. 
 I shall not reiterate all our concerns about the seller's packs, with which we dealt at some length on Second Reading and to which we will return, no doubt also at length, in Committee. I commend amendment No. 34 to the Committee and hope that we will have the support of the Liberal Democrats if we press it to a vote.

Chris Mullin: The moment has come. I propose to keep very quiet about the fact that I possess a third-class law degree attained more than 30 years ago and that I have not had a single legal thought since I left university.
 Suffice it to say that the professor who taught me property law, who was alleged to be one of the leading academic specialists in the country, made only one attempt at conveyancing in his life—on his own house—and had to call in a solicitor to help him out of the mess in which he had got himself. I therefore make no great claims for any expertise that he may or may not have passed on to me. 
 Our starting point for debating the amendments should be a clear acknowledgement of the deficiencies in the present home buying and selling process, which cause misery and wasted costs to hundreds of thousands of people each year. I am afraid that the amendments would perpetuate those deficiencies, although I appreciate that that was certainly not the aim of the hon. Member for Bath and his colleagues. 
 The results of the most extensive research ever conducted into the home buying and selling process in this country show that the process is painfully slow by international standards and just about the slowest in Europe. It is horribly inefficient and operates in a disjoined fashion, with professionals spending most of their time sitting around waiting for someone else to do something. The process is enormously wasteful and prone to problems and delays: 28 per cent. of transactions fail after an offer has been accepted—a failure rate that costs home buyers and sellers £350 million per annum in wasted costs. The most telling statistic and the one on which we must focus is that a staggering 40 per cent. of consumers are not satisfied with the present process. The results of that research, carried out by independent consultants, were presented in a major consultation, together with options for reform. The responses revealed a clear consensus on the way forward: home buyers and sellers need more information and they need it up front, at the start of the process. Part I seeks to make that a reality. 
 The seller's pack needs to be compulsory to ensure that everyone benefits from it. We are in no doubt about that. Voluntary arrangements would not work.

Don Foster: If the Government proposed that the seller in every single sale had to abide by the scheme, I would understand the argument, but we have just completed debate on a previous set of amendments that dealt with a range of exceptions to the rules that the Government are introducing. The Minister for Housing and Planning has already told us of the dangers of the list argument, but the Government are beginning to create a list on which there are already three items. On Second Reading, the Under-Secretary gave a clear indication to his hon. Friends, several of whom had raised concerns about sales in low-value house price areas, that further exemptions might be made, thus adding to the list. The approach being adopted by the Government is not a universal one, so the Minister's argument falls.

Chris Mullin: As my hon. Friend the Minister of State has outlined, there are a number of modest exceptions for purely practical common-sense reasons. However, the exceptions envisaged in the amendments would drive a coach and horses through our proposals, so we cannot go along with them. They would introduce a voluntary seller's pack system by the back door and allow sellers to avoid the seller's pack obligation by ensuring that the marketing material made it clear that the property was being sold without a seller's pack. That would probably be the worst of all worlds. Given the choice, it is inevitable that some sellers—perhaps a sizeable proportion—would choose to market their home without a seller's pack, perhaps in an effort to avoid costs or in the hope of avoiding disclosure of information, for example, about a problem with the condition of the property that a home condition report would identify. That would be unfair to buyers who had provided a seller's pack for their own sale.
 More harmful, the amendments would result in an unsatisfactory two-track transactions process whereby sales without packs would slow down connected sales with packs.

Tim Loughton: I challenge the Minister's logic. He said that that system would be unfair to those vendors who had chosen to go to the extent of having a seller's pack, but if sellers' packs are so attractive and advantageous and if they will solve the problems, surely those who choose to have them will have a positive marketing advantage over those who market their houses without them. What is he afraid of? The market would work in his favour.

Chris Mullin: One of the things of which we afraid is that there would be a number of free riders trying to sell their house without undertaking the costs involved in producing a seller's pack, while hoping that the people from whom they were buying next on the chain had got such a pack. Life is like that, as I am sure the hon. Gentleman has noticed during the course of his short career. In a chain, that would cancel out those benefits the Bill is designed to achieve. We would end up with a system that fostered waste, uncertainty and delay, and that is the opposite of what the Government intend.
 Amendment No. 16 carefully limits its effects to cases in which the seller, rather than an estate agent, carries out the marketing. We recognise that consumer protection law is often concerned with the activities of businesses rather than individual consumers, but the best interests of consumers—that is, responsible home sellers and buyers—would not be well served by the amendment; indeed, they would be seriously damaged. Currently, about 5 per cent. of sellers carry out their own marketing rather than use an estate agent. That figure is likely to increase as sellers are attracted by opportunities to market their homes over the internet—there is a growing number of websites offering sellers that facility. The effect of the amendment would be that considerably more sellers would choose to market their homes themselves to avoid the cost of compiling a seller's pack. 
 Let us not forget that there are real benefits for sellers who market their home with the seller's pack: getting the information available up front helps the seller to decide on a realistic asking price, greatly reduces the risk that the buyer will want to re-negotiate the terms in the light of information—for example, regarding defects in the building revealed by the survey, which under the current arrangements would not be disclosed until some time after terms had been agreed—and offers certainty by shortening the period between acceptance of an offer and exchange of contract. Those are important benefits. Of course there are equal, if not greater, benefits for buyers. When a property is marketed to the public or a section of the public, such information should be available regardless of whether an agent or the seller is marketing the property. 
 I shall therefore ask the Committee to resist the amendments. Before I do, I shall address the two points made by the hon. Member for Bath. First, he said that he was helping us out, in the event that we wanted to exempt some low-value properties. As my hon. Friend the Minister of state said, we are still thinking about it, but, with all due respect, we do not want to be helped out in that respect at this stage in our deliberations. 
 On the hon. Gentleman's second point about the use of the criminal law and the concerns expressed by the Local Government Association, may I draw his attention to paragraph 57 of the explanatory notes, which makes it clear that the trading standards officer has discretion to use a range of options available to him. He does not have to crash in with a criminal prosecution at the first sign of any difficulty. He can, if he wishes, give advice or a warning, offer a formal caution, serve a fixed penalty notice, or commence a prosecution in the magistrates court. The idea that some poor punter who has made an accidental error, or who is not familiar with the procedure, will be subject to the full rigours of the criminal law, is illusory.

Nigel Waterson: It is becoming ever more apparent that the Minister was lucky to get a third-class law degree. It is not open to Ministers of the Crown to wave their arms around and say ``Well, some poor punter who makes a mistake won't be dragged away by the conveyancing gestapo.'' Those responsible for enforcement will have a degree of discretion. If one happens to come across the sort of person one sometimes encounters—not, I hasten to say, in Eastbourne—a jumped-up official who takes his responsibilities too seriously, it does not matter whether one is an innocent punter or not. It is not open to Ministers to make such decisions.

Chris Mullin: The fact is that trading standards officers are a professional body of people who have been doing a good job for many years and who have a range of discretions available to them. I do not think that they will take kindly to being described as ``gestapo''. I therefore ask that this amendment be withdrawn.

Don Foster: Mindful of the time, may I just say to the Minister that if he has a good product, he should have confidence in it? It appears that the Government do not have much confidence in their product. I am amazed that the Minister draws my attention to paragraph 57 of the explanatory notes, which sets out the range of the discretionary routes that local authority trading standards officers can follow. The implication of that is that he is not the slightest bit interested in what the local authority trading standards officers, as represented by the Local Government Association, have to say on that point.
 I remind the Under-Secretary that he and his hon. Friend the Minister of State were very keen to pray in aid trading standards officers when they were telling us that the average cost per council was going to be only an amazing £5,000 per council. I can assure him they are not saying that in relation to the current issue. However, if the hon. Gentlemen do not want to be helped out now, I am sure that it will be better to allow more time for ministerial reflection and more time in which to work on them. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Further consideration adjourned.—[Mr. Robert Ainsworth.] 
 Adjourned accordingly at one minute past Seven o'clock till Thursday 18 January 2001 at fifteen minutes to Ten o'clock.